Supreme Court of Florida
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No. SC19-385
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STEVEN YOUNKIN,
Petitioner,
vs.
NATHAN BLACKWELDER,
Respondent.
October 14, 2021
PER CURIAM.
We accepted review of the Fifth District Court of Appeal’s
decision in Younkin v. Blackwelder, 44 Fla. L. Weekly D549 (Fla.
5th DCA Feb. 22, 2019), in which the district court, in an
automobile negligence case, passed upon a question that it certified
to be of great public importance regarding whether this Court’s
decision in Worley v. Central Florida Young Men’s Christian Ass’n,
228 So. 3d 18 (Fla. 2017), forecloses discovery of the financial
relationship, if any, between a personal-injury defendant’s nonparty
law firm and the defendant’s expert witnesses. We have
jurisdiction. See art. V, § 3(b)(4), Fla. Const.
After the plaintiff requested certain information regarding the
financial relationship between the defendant’s law firm and the
defense’s medical expert, the defendant moved for a protective
order, but the trial court denied the motion. Younkin, 44 Fla. L.
Weekly at D549. The defendant then filed a petition for writ of
certiorari in the Fifth District. The district court denied the
petition, concluding that the trial court’s order was consistent with
the Fifth District’s earlier decision in Vazquez v. Martinez, 175 So.
3d 372 (Fla. 5th DCA 2015). Younkin, 44 Fla. L. Weekly at D549-
D550. In Vazquez, the Fifth District held that “discovery of the
doctor/law firm relationship or doctor/insurer relationship is
allowed.” 175 So. 3d at 374. Here, the Fifth District concluded that
Worley, which held that the attorney-client privilege protects a
plaintiff and the plaintiff’s nonparty law firm from having to disclose
certain information involving the plaintiff’s treating physicians, “did
not implicitly overrule Vazquez or other similar cases.” Younkin, 44
Fla. L. Weekly at D550. Nevertheless, because the Fifth District
was concerned “that the law in this area is not being applied in an
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even-handed manner to all litigants,” the Fifth District certified a
question regarding whether Worley should be applied to the
discoverability of the financial information at issue. Id.
In Dodgen v. Grijalva, No. SC19-1118 (Fla. Oct. 14, 2021), we
have addressed a similar certified question from the Fourth District
Court of Appeal in a case involving certiorari review by the district
court of a discovery order that had ordered the defendant to
produce certain information regarding the financial relationship, if
any, between the defendant’s nonparty insurer and the defense’s
expert witnesses. The Fourth District denied the defendant’s
petition. Dodgen, slip op. at 7. However, after expressing concerns
similar to those raised by the Fifth District here, the Fourth District
certified a question involving whether Worley should be applied to
preclude discovery of the financial relationship at issue. Id. at 1-2,
7. We reframed the certified question, id. at 2, distinguished
Worley, and concluded that, because the trial court’s discovery
order was consistent with established law, the discovery order did
not depart from the essential requirements of the law. See id. at
10-14. We thus approved the result reached by the Fourth District.
Id. at 15.
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Our decision in Dodgen is controlling here. We thus reframe
the certified question as follows:
Whether it is a departure from the essential requirements
of law to permit discovery regarding the financial
relationship between a defendant’s nonparty law firm and
an expert witness retained by the defense?
And we answer in the negative. Because Worley is distinguishable,
and because the trial court’s discovery order was consistent with
binding district court precedent, see Vazquez, 175 So. 3d at 374,
the discovery order did not depart from the essential requirements
of the law.
Given the inapplicability of Worley, we decline the dissent’s
invitation to “recede from Worley.” Dissenting op. at 8. Adopting
the dissent’s proposal would amount to an unwarranted use of our
jurisdiction.
As an initial matter, the dissent’s emphasis on the fact that
Petitioner may have “alternatively [asked the trial court] for an
‘extension, modification, or reversal of existing law,’ ” id. (quoting
Younkin, 44 Fla. L. Weekly at D549), is no basis for receding from
Worley and in any event ignores the arguments Petitioner presented
to the district court and to this Court. At the district court,
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Petitioner merely argued that Worley was “binding . . . precedent”
and that the trial court “failed to apply” Worley. It is thus hardly
surprising that the question ultimately certified by the district court
asked only whether Worley “should also apply” to preclude the
discovery at issue. Younkin, 44 Fla. L. Weekly at D550. In briefing
to this Court, Petitioner similarly asks only that Worley be
extended. Petitioner nowhere argues that Worley was wrongly
decided or requests that we recede from Worley. The only issue
properly before this Court is whether Worley applies, or should
apply, to the trial court’s discovery order. And although we have
reframed the question as certified by the district court, our opinion
nevertheless plainly establishes that Worley is not applicable.
Of course, the dissent by no means suggests that Worley
should be applied here. Instead, the dissent proposes to recede
from Worley. But the dissent also overlooks that doing so would in
no way impact the discovery ruling before this Court. Receding
from Worley’s discovery prohibition would simply remove the
prohibition against the discoverability of certain information sought
by a defendant in circumstances different from those presented
here. Indeed, the decision in Worley, which repeatedly referenced
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“treating physicians” and “treatment,” hinged on the existence of
the treating physician relationship. See, e.g., Worley, 228 So. 3d at
25 (“[T]he question of whether a plaintiff’s attorney referred him or
her to a doctor for treatment is protected by the attorney-client
privilege.”). The discovery ruling here, on the other hand—i.e., the
one denying the defendant’s motion for protective order—only
involves certain information unrelated to a treating physician
sought by a plaintiff. The petition for certiorari challenged no other
discovery ruling. At bottom then, the dissent takes issue not with
the discovery ruling properly before this Court, but with some other
discovery ruling that might be rendered in another case. And our
certified-question jurisdiction should not be used—as the dissent
proposes—to recede from caselaw when doing so would have no
impact on the issue properly before this Court. Certified question
jurisdiction is not advisory opinion jurisdiction.
Long ago, Judge Cardozo recognized this fundamental
principle of judicial power: “The function of the courts is to
determine controversies between litigants. They do not give
advisory opinions. The giving of such opinions is not the exercise of
the judicial function.” In re Workmen’s Comp. Fund, 119 N.E. 1027,
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1028 (N.Y. 1918) (citations omitted). In line with this elementary
and universally recognized principle, we have acknowledged that
“every case must involve a real controversy as to the issue or issues
presented” and that “the parties must not be requesting an advisory
opinion except in those rare instances in which advisory opinions
are authorized by the Constitution.” Dep’t of Revenue v. Kuhnlein,
646 So. 2d 717, 720-21 (Fla. 1994) (citation omitted). These
fundamental principles are not set aside simply because a certified
question has been presented. And zeal to correct an error in the
law should not be allowed to precipitate the abrogation of
fundamental restraints on the exercise of judicial power.
As in our decision in Dodgen, we see no basis for revisiting the
established law on the issue presented by this case. Accordingly,
we answer the reframed question in the negative and approve the
result reached by the Fifth District.
It is so ordered.
CANADY, C.J., and LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., concurs in result.
POLSTON, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
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POLSTON, J., dissenting.
As noted by the Fifth District Court of Appeal below, Petitioner
moved in the trial court for a protective order, arguing that Worley
v. Central Florida Young Men’s Christian Ass’n, 228 So. 3d 18 (Fla.
2017), applied to bar discovery or alternatively for an “extension,
modification, or reversal of existing law.” Younkin v. Blackwelder,
44 Fla. L. Weekly D549, D549 (Fla. 5th DCA Feb. 22, 2019). The
trial court ruled that Worley did not apply, and the Fifth District
agreed. See id. at D549-50. However, the Fifth District recognized
that because of Worley, there is a compelling case that plaintiffs are
receiving more favorable treatment than defendants under the law.
Id. at D550. I agree. Because Worley caused the unequal
treatment in the law, this Court should recede from Worley. See
Worley, 228 So. 3d at 29-30 (Polston, J., dissenting). The majority
focuses on the narrow issue of whether discovery is permitted in
this instance and improperly skips over the larger remaining issue
of unequal treatment under the law as argued by Petitioner and
recognized by the Fifth District. Unlike the majority, I believe this
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issue is properly before the Court and should be remedied by
receding from Worley.
Applying certiorari review standards, the majority reframed the
certified question to whether it is a departure from the essential
requirements of the law to permit discovery regarding the financial
relationship between a defendant’s nonparty law firm and an expert
witness retained by the defense and concluded the trial court’s
ruling allowing the discovery was consistent with established law.
See majority op. at 4. As ruled by the majority, Worley, on its face,
does not apply to defendants so it does not bar the discovery in this
case. See majority op. at 4.
However, the majority does not reach Petitioner’s request for
an “extension, modification, or reversal of existing law” and declines
to reexamine the analysis adopted in Worley due to the procedural
posture of this case being presented via writ of certiorari and not by
plenary appeal. See majority op. at 4. As a result, the majority’s
ruling leaves intact the unequal treatment between plaintiffs and
defendants caused by this Court’s erroneous ruling in Worley. See
Younkin, 44 Fla. L. Weekly at D550 (“Petitioner raises a compelling
argument that the law in this area is not being applied in an even-
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handed manner to all litigants . . . .”); see also Dodgen v. Grijalva,
281 So. 3d 490, 492 (Fla. 4th DCA 2019) (“We agree that the
discovery laws in this context have resulted in disparate and
possibly unfair treatment of plaintiffs and defendants.”); Levitan v.
Razouri, No. 4D19-2200 (Fla. 4th DCA July 22, 2019) (certifying
whether Worley applies to preclude an insurance company that is
not a party from disclosing financial relationship with experts as a
question of great public importance); Rosenthal v. Badillo, No.
4D19-1854 (Fla. 4th DCA July 3, 2019) (same); Salber v. Frye, 273
So. 3d 192, 193 (Fla. 5th DCA 2019) (same); Dhanraj v. Garcia, 44
Fla. L. Weekly D785, D785 (Fla. 5th DCA Mar. 22, 2019) (same).
Judge Lambert, on behalf of the Fifth District below, described this
unequal treatment with an excellent example:
[U]nder Worley, a plaintiff law firm can refer 100 of its
clients to the same treating physician, who may later
testify as an expert witness at trial, without that referral
arrangement being either discoverable or disclosed to the
jury, yet if a defense firm sends each one of these 100
plaintiffs to its own expert to perform a CME under
Florida Rule of Civil Procedure 1.360, and then later to
testify at trial, the extent of the defense law firm’s
financial relationship with the CME doctor is readily
discoverable and can be used by the plaintiff law firm at
trial to attack the doctor’s credibility based on bias. See
§ 90.608(2), Fla. Stat. (2016). Nevertheless, this appears
to be the present status of the law.
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Younkin, 44 Fla. L. Weekly at D550. This Court has also previously
recognized that unequal treatment in discovery is not appropriate.
See Elkins v. Syken, 672 So. 2d 517, 522 (Fla. 1996) (ruling on
discovery, noting that the decision “is in no way intended to favor
either plaintiffs or defendants; it is intended to reach a proper
balance to protect the rights of both”).
In Worley, the plaintiff sought relief through writ of certiorari,
and the district court denied the petition and held “that it was
appropriate for YMCA to ask Worley if she was referred to the
relevant treating physicians by her counsel or her counsel’s firm.”
228 So. 3d at 21-22. On discretionary review, this Court did not, as
the majority does for the case at bar, review only for whether the
district court’s decision departed from the essential requirements of
the law. Instead, this Court created new law by concluding “that
the question of whether a plaintiff’s attorney referred him or her to
a doctor for treatment is protected by the attorney-client privilege.”
Id. at 25. Accordingly, it was this Court in Worley that created the
uneven-handed treatment now at issue in this case, and only this
Court can recede from its erroneous ruling. See Hoffman v. Jones,
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280 So. 2d 431, 434 (Fla. 1973) (explaining that although district
courts are “bound to follow the case law set forth by this Court,”
they are not “powerless to seek change” and are “free to certify
questions of great public interest to this Court for consideration,
and even to state their reasons for advocating change”).
In Nader v. Florida Department of Highway Safety and Motor
Vehicles, 87 So. 3d 712, 726-27 (Fla. 2012), this Court concluded
that the district court did not exceed the scope of its authority to
grant certiorari relief because it corrected a serious error resulting
in a miscarriage of justice. The Court stated that district courts of
appeal “must be able to correct serious errors resulting in a
miscarriage of justice,” noting that the certiorari standard must
contain “a degree of flexibility and discretion.” Id. at 727 (quoting
the standard from Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523,
530 (Fla. 1995)). If district courts of appeal are afforded the
flexibility to correct serious errors resulting in the miscarriage of
justice, then this Court certainly is as well.
Given the majority’s ruling, it appears that Worley can only be
readdressed on plenary review after a trial court and district court
of appeal prohibit discovery from a plaintiff in the same manner as
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sought in Worley. I would not require Petitioner to thread that
procedural needle.
Because I would recede from Worley and require disclosures
equally from plaintiffs and defendants, I respectfully dissent.
Application for Review of the Decision of the District Court of Appeal
Direct Conflict of Decisions/Certified Great Public Importance
Fifth District – Case No. 5D18-3548
(Orange County)
Kansas R. Gooden, Miami, Florida, and Geneva R. Fountain, Boyd
& Jenerette, PA, Jacksonville, Florida,
for Petitioner
Mark A. Nation and Paul W. Pritchard of The Nation Law Firm,
Longwood, Florida,
for Respondent
Elaine D. Walter of Boyd Richards Parker Colonnelli, Miami,
Florida; and Andrew S. Bolin and Chizom Okebugwu of Bolin Law
Group, Tampa, Florida,
for Amicus Curiae Florida Defense Lawyers Association
William W. Large of Florida Justice Reform Institute, Tallahassee,
Florida; and Jason Gonzalez and Amber Stoner Nunnally of Shutts
& Bowen LLP, Tallahassee, Florida,
for Amici Curiae Chamber of Commerce of the United States of
America and Florida Justice Reform Institute
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John Hamilton of Law Office of John Hamilton of Tampa, P.A., San
Antonio, Florida; and Patrick A. Brennan of HD Law Partners, P.A.,
Tampa, Florida,
for Amici Curiae Dr. Michael Foley and Dr. John Shim
William T. Cotterall, Tallahassee, Florida; and Bryan S. Gowdy,
Florida Justice Association, Jacksonville, Florida,
for Amicus Curiae Florida Justice Association
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